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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 522-523   OF 2016

ATUL THAKUR … APPELLANT(S) :Versus:

STATE OF HIMACHAL PRADESH  ETC. ETC. ….      RESPONDENT(S)

J U D G M E N T

A.M. Khanwilkar, J.

1. These appeals have been filed against the judgment and order

dated  1st April,  2016  passed  by  the  High  Court  of  Himachal

Pradesh,  Shimla  in  Criminal  Appeal  Nos.75  &  227  of  2015,

modifying  the  order  of  conviction  and  sentence  passed  by  the

Sessions  Judge  (Forests),  Shimla,  dated  31st December,  2014  in

Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant

under Section 302 of the Indian Penal Code (IPC) and sentencing

him to imprisonment for life along with fine.

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2. Shorn of details, the appellant along with three others were

tried  for  offence  punishable  under  Sections  302,  201  read  with

Section 34 of IPC by the Sessions Judge (Forests), Shimla.  The case

of  the  prosecution  is  that  a  telephone  message  was  received  at

Police Station,  West Shimla at around 4.45 A.M. on 28.07.2011,

informing that a quarrel had taken place near Tunnel  103, from

where  one  Hunny  was  brought  to  IGMC  Hospital  (Shimla)  in

seriously  injured  condition.  On  reaching  the  hospital,  the  SHO

Shakuntala Sharma was informed that the injured had succumbed

to the injuries. She then recorded the statement of Rajinder Singh

under  Section  154  of  the  Code  of  Criminal  Procedure.  In  his

statement, Rajinder Singh disclosed that he had two children. His

daughter Pooja was doing computer course and his younger son

Hitesh Thakur, 22 years of age, was also doing computer course

from  Lakhar  Bazar.  He  stated  that  Hitesh  had  left  home  on

27.07.2011 after taking meal, on his motorcycle bearing registration

No.HP-63-3235,  for  attending  computer  course.  He  had  then

informed his sister Pooja on her mobile that he was going with his

friend Akhilesh and would not be returning during the night.  He

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requested his  sister  to  inform their  mother.  At  about  3 a.m.  on

28.07.2011  one  Atul  Thakur  (appellant  herein)  telephonically

informed him that his son Hitesh was brought to IGMC Hospital,

Shimla as he was not feeling well and asked him to come to the

hospital. On receiving that telephonic information he rushed to the

hospital  and  found  that  his  son  was  lying  dead  in  wounded

condition. At that time, the appellant was also present there.   

3. After  recording  the  statement,  investigation  proceeded  and

four  accused,  who  had  visited  the  house  of  Mukesh  Thakur

(Accused No.2) where a drink party was arranged during the night

of  27.07.2011 and 28.07.2011,  were sent  for  trial  for  the stated

offence.  The Trial Court after analysing the evidence acquitted the

other three accused but found the appellant guilty of the offence

punishable  under  Section  304,  Part-II  and  sentenced  him  to

rigorous imprisonment for five years and to pay fine of Rs.10,000/-,

in  default  to  undergo  further  imprisonment  for  one  year   vide

judgment dated 31st December, 2014.   

4. Against the said decision, the appellant filed an appeal before

the  High  Court,  being  criminal  Appeal  No.75  of  2015.  The

complainant  also  filed  an  appeal  before  the  High  Court,  being

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Criminal  Appeal  No.227  of  2015  against  the  acquittal  of  three

accused as well as for enhancement of sentence of the appellant.

Both  the  appeals  came to  be  disposed  of  by  common judgment

dated 1st April, 2016.  The High Court upheld the finding of fact

regarding the  involvement  of  the  appellant  in  the commission of

crime.  However, it reversed the finding and conclusion recorded by

the Trial Court regarding the nature of offence.  It concluded that

taking an overall  view of  the matter,  the appellant  was guilty  of

offence  punishable  under  Section  302  of  IPC  for  the  murder  of

Hitesh Thakur and not under Section 304 Part-II, as held by the

Trial Court. At the same time, the High Court affirmed the order of

acquittal in favour of the other accused who were tried along with

the appellant. In the present appeals, the aforementioned decision

of the High Court has been assailed only by the original accused

No.1.  

5. Mr.  Aditya  Dhawan,  learned  counsel  appearing  for  the

appellant, made a fervent effort to persuade this Court that there is

an obvious contradiction between the evidence of the eye-witnesses

which should enure to the benefit of the appellant.  According to

him,  the  appellant  deserves  to  be  acquitted  as  in  the  case  of

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co-accused, as the genesis of the offence is doubtful. Further, the

involvement of the appellant in the commission of crime has not

been  proved  beyond  reasonable  doubt.  He  took  us  through  the

evidence  of  the  prosecution  witnesses  and  also  of  the  defence

witness (DW1) who was examined at the instance of the appellant.

He submits that in any case, the fact situation established by the

prosecution, even if  taken as it is, does not warrant a finding of

commission of offence of murder of Hitesh Thakur. At best it is a

case of culpable homicide not amounting to murder, covered by the

Exception under Section 300 of IPC and, thus, punishable under

second  part  of  Section  304  of  IPC.  The  Trial  Court  had  justly

invoked that offence and sentenced the appellant to undergo five

years  rigorous  imprisonment  which  the  appellant  has  already

undergone. He, therefore, submits that this appeal be allowed and

the appellant be set free by reviving the order of the Sessions Court

and setting aside the impugned judgment and order of  the High

Court.  He  submits  that  the  appellant  has  already  undergone

sentence  for  a  period  of  7  years  3  months  24  days  as  on  24th

November, 2017 including remission period of one year 2 months

and 6 days.   

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6. Learned counsel  for the respondents,  however,  has opposed

these appeals.  According to the respondents, the finding of guilt

recorded by the two Courts below is supported by the evidence on

record which has established the involvement of the appellant in

the  commission  of  crime  beyond  doubt.  The  finding  of  guilt  so

recorded by the Trial Court and affirmed by the High Court does not

warrant  any  interference.  Similarly,  the  finding  recorded  by  the

High Court reversing the opinion of the Trial Court to convict the

appellant under Section 302 of IPC is also unexceptionable.  The

High Court  justly  noted  that  it  was  a  case  of  murder  of  Hitesh

Thakur  which  is  punishable  under  Section  302  of  IPC  and  not

under Section 304 Part-II, in which case the appellant will have to

suffer  the sentence period of  life  imprisonment.  The respondents

would submit that the appeals are devoid of merit and ought to be

dismissed.  

7. We have carefully considered the oral evidence adduced by the

prosecution, in particular the evidence of PW-11 and PW-12 who

were the eye-witnesses to the incident during which Hitesh Thakur

was assaulted by the appellant with knife causing serious bodily

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injuries to which he finally succumbed. In addition to the said oral

evidence, the other circumstances also point towards the complicity

of the appellant in the commission of crime such as recovery of the

knife  at  his  instance  and the  nature  of  injuries  suffered by  the

deceased  attributable  to  the  assault  by  the  same  knife  by  the

appellant.  We  find  that  the  Trial  Court  has  justly  analysed  the

evidence to record a finding about the complicity of the appellant in

the commission of crime. That has been affirmed by the High Court

after reappreciation of the relevant evidence. We are in agreement

with the view so taken by the two Courts below.  In other words, we

are  inclined  to  uphold  the  concurrent  finding  recorded  by  the

Courts  below that  the  appellant  caused  six  injuries  to  deceased

Hitesh  Thakur  by  attacking  him  with  a  knife  on  the  night  of

27.07.2011 in the presence of their friends (including PW-11 and

PW-12)  who  had  gathered  at  the  house  of  Mukesh  Thakur  for

celebrating a drink party arranged at the behest of Hitesh Thakur.

Further, Hitesh Thakur succumbed to the injuries caused by the

appellant. Thus, it is a case of homicidal death.  

8. Notably,  the  evidence  on  record  plainly  establishes  that  a

sudden fight took place between the appellant and Hitesh Thakur

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and in the heat of passion, the appellant assaulted Hitesh Thakur

causing serious bodily injuries. There is no shred of evidence, much

less  even  a  remote  suggestion  that  the  appellant  had  assaulted

Hitesh Thakur with an intention to cause his death.  Though the

High  Court  found  the  appellant  guilty,  it  has  not  held  that  the

bodily injuries caused by the appellant were with an intention to

cause the death of Hitesh Thakur.  The High Court overturned the

finding recorded by the Trial Court regarding the nature of offence,

principally  on the ground that  the appellant  gave repeated knife

blows  to  Hitesh  Thakur  and  Hitesh  Thakur  could  not  defend

himself as he was unarmed. Thus, the appellant was found guilty of

offence punishable under Section 302 of IPC.    9. In other words, the controversy in these appeals boils down to

the nature of offence and the sentence to be awarded in that behalf.

As aforesaid, the evidence on record, as held by two Courts below

and  with  which  finding  we  are  in  full  agreement,  is  that  the

appellant gave six knife blows to Hitesh Thakur on the fateful night

to  which  he  succumbed.  Thus,  it  is  a  case  of  homicidal  death.

However,  there  is  no  evidence  that  the  injuries  inflicted  by  the

appellant  were  with  an intention  to  cause  the  murder  of  Hitesh

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Thakur.  On the other hand, the evidence clearly establishes that

the appellant assaulted Hitesh Thakur without any premeditation.

The whole incident took place suddenly and, in the heat of passion

a sudden quarrel started as Hitesh Thakur, while smoking, blew

smoke on the face of the appellant. Resultantly, the appellant got

enraged. He told him that he was senior in age and thus should not

smoke in his  presence  much less  blow the  smoke towards him.

Then a sudden physical fight started between them, in which the

appellant, in heat of passion, gave six knife blows to Hitesh Thakur

on different parts of his body.   

10. The  evidence  of  PW-11  and  PW-12  (eye-witnesses)  would

establish that the appellant and others including deceased Hitesh

Thakur had gathered at the spot for a drink party arranged at the

instance of Hitesh Thakur.  They had consumed drinks when the

incident took place. Soon after assaulting Hitesh Thakur by knife,

when the appellant realised that Hitesh has been badly injured, he

offered him water and took him to the hospital along with his other

friends. He was in the hospital till Hitesh Thakur succumbed to the

injuries. He had also informed the father of Hitesh on telephone and

called him to the hospital. Further, when Hitesh was taken to the

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hospital, the doctors did not provide him immediate treatment but

insisted  on  calling  his  father.   This  can  be  culled  out  from the

evidence of  PW-11 and PW-12, who were eye-witnesses and also

present throughout and until the last rites of Hitesh Thakur were

performed.  11. Taking  into  account  the  events  as  unfolded,  it  leaves  no

manner of doubt that the appellant had no intention to cause the

death  of  Hitesh  Thakur.  The  incident  happened  without  any

premeditation in a sudden fight  between Hitesh Thakur and the

appellant and in heat of  passion the appellant inflicted six knife

blows  on  Hitesh  Thakur.  On  the  contrary,  after  realising  his

mistake, he immediately offered water to Hitesh Thakur and also

took  him  to  hospital  and  stayed  there  till  his  last  rites  were

performed.  PW-2  father  of  deceased  Hitesh  Thakur  also

corroborates the position that the appellant had contacted him to

inform that  Hitesh  had  been  brought  to  the  hospital  in  serious

condition.  

12. Taking overall view of the matter, the facts of the present case

warrant invocation of Exception 4 to Section 300 of IPC. For, it is a

case of culpable homicide not amounting to murder inasmuch as

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the  incident  happened  on  account  of  sudden  fight  between  the

friends who had gathered for a drink party arranged at the behest

of Hitesh Thakur. There was no pre-mediation and the act done by

the  appellant  was  in  the  heat  of  passion  without  the  appellant

taking  any  undue  advantage  or  acted  in  a  cruel  manner.  The

number of wounds caused by the appellant, it is a well established

position,  by  itself  cannot  be  a  decisive  factor.  The  High  Court

committed manifest error in being influenced by the said fact. What

is relevant is that the occurrence was sudden and not premeditated

and  the  offender  acted  in  the  heat  of  passion.  The  evidence

supports the case of the appellant in this behalf. The fact that the

appellant used weapon such as knife, is also not a decisive factor to

attract  Section  302  of  IPC.   Neither  the  use  of  a  knife  in  the

commission of offence nor the factum of multiple injuries given by

the  appellant  would  deny  the  appellant  of  the  benefit  of

Exception 4.  

13. Dealing  with  a  somewhat  similar  situation,  in  the  case  of

Surain Singh Vs. State of Punjab 1, this Court has restated the

settled legal position about the purport of Exception 4 to Section

1  (2017) 5 SCC 796

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300  of  IPC.   Even  in  that  case,  the  accused  had  repeatedly

assaulted the deceased with a Kirpan and caused injuries resulting

into death. After restating the legal position, the Court converted

the offence to one under Section 304 Part-II instead of Section 302

IPC.  Following the same legal principle and keeping in mind the

factual position as unfolded, the view taken by the Trial Court of

convicting the appellant for offence punishable under Section 304

Part-II, is unexceptionable. The Trial Court had observed thus:

“60.  The  evidence  placed  on  record  by  the prosecution,  reveals  that  deceased Hitesh and the accused  were  having  cordial  relations  since  long, knowing  to  each  other  and  were  good  friends.  A party was organized by the deceased in the room of accused Mukesh and deceased himself invited all the accused  to  attend  the  party.  In  this  party,  large quantity  of  alcohol  was  consumed  by  them  and suddenly  an  altercation  took  place  between deceased  Hitesh  and  accused  Atul  Thakur  as  a result of which accused Atul stabbed Hitesh, which resulted into his death……   

61.  There is no doubt that Hitesh met a homicidal death  on  the  night  intervening  27/28.07/2011  at IGMC, Shimla consequent to stab injury inflicted by accused Atul Thakur. The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would amount to murder  or  culpable  homicide  not  amounting  to murder.  It  is  an  admitted  fact  that  there  was  no enmity  between  the  deceased  and  this  accused rather they were having cordial relations.  The fact

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that  there  was  a  physical  fight  between  the deceased and the  accused Atul,  cannot  be  denied because  it  has  come  in  the  evidence  of  PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place between them. In  these  circumstances,  this  Court  will  have  to examine  the  prosecution  evidence  whether  the accused  Atul  had  taken  an  undue  advantage  or acted in a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300.  In fact, the prosecution could not prove any motive for killing the deceased by the accused.  The drinking session in the room of the accused Mukesh Thakur was by mutual consent.  From these circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession.  The next question which  arises  for  consideration  is  whether the accused Atul did take an undue advantage of the said  fight  or  acted  in  a  cruel  or  inimical  manner. Keeping in view the fact that both the deceased and accused  had  consumed  considerable  amount  of alcohol which is established from the evidence of the prosecution witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul.  It  is probable that in an inebriated condition the  accused  inflicted  the  injuries  because  of  the physical fight between them.  Moreover, keeping in view  the  nature  of  the  injuries  noticed  by  Dr. Sandeep  Kaushik  in  the  MLC  Ext.  PW-18/A,  it  is difficult to accept the accused Atul Thakur intended to cause the death of Hitesh or that the injuries were so  dangerous  that  they  would  in  all  probability, cause death.  Nevertheless,  the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the chest  or  abdomen of  a person then this  act  is likely to cause the death of the victim.

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62.  Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only  be  found guilty  of  an offence  punishable under Section 304 Part II, Indian Penal Code.”

14. As aforesaid,  the  High Court  overturned this  finding  of  the

Trial  Court  on  the  question  of  nature  of  offence,  by  mainly

observing  that  the  appellant  had  caused  repeated  blows  with  a

weapon like knife, causing six serious injuries to Hitesh Thakur to

which he succumbed. We are of the opinion that neither the factum

of use of knife by the appellant during the assault nor the multiple

blows (six) given by the appellant can be the sole basis to deny the

appellant of the benefit available under Exception 4 to Section 300

of IPC.  The Court is obliged to take an overall view of the matter on

the  basis  of  the  established  facts.  This  principle  is  restated  in

Surain Singh’s case (supra).  

15. The  next  question  is  whether  the  appellant  is  right  in  his

persuasive argument to restore and revive the decision of the Trial

Court on the quantum of sentence.  The Trial Court awarded the

sentence of  rigorous imprisonment for  five years only for  offence

under Section 304 Part-II  of  IPC and fine of  Rs.10,000/- and in

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default, to undergo rigorous imprisonment for a further period of

one year. For that no special reason has been recorded by the Trial

Court.  Considering the nature of offence and the trivial reason for

which the appellant got enraged and assaulted Hitesh Thakur, that

too by a knife and also gave multiple blows, does not warrant a light

punishment.  We  would,  however,  accept  the  argument  of  the

respondents  that  in  the  fact  situation  of  the  present  case,  the

sentence  period should  not  be  less  than 10 years imprisonment

with fine. That would meet the ends of justice.  

16. Accordingly, we partly allow these Criminal Appeal Nos.75 and

227 of 2015 filed by original accused No.1 Atul Thakur. We modify

the impugned judgment of the High Court against the appellant in

respect of  nature of  offence and instead restore the order of  the

Trial Court in that behalf. The appellant is held guilty for an offence

punishable under Section 304 Part-II  of  IPC and is sentenced to

undergo rigorous imprisonment for a period of 10 (Ten) years with

fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo

further imprisonment for one year.  Needless to mention that the

appellant shall be entitled to set off under Section 428 of the Code

of Criminal Procedure.

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17. These appeals are disposed of in the aforementioned terms.     

…………………………….CJI.          (Dipak Misra)

…………………………..….J.         (A.M. Khanwilkar)

…………………………..….J.        (Dr. D.Y. Chandrachud)

New Delhi; January 19, 2018.